Surekha Madhav Bodkhe vs The Stae Of Maharashtra And Anr
2016 Latest Caselaw 4880 Bom

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          IN  THE HIGH COURT OF JUDICATURE AT BOMBAY 

                                   BENCH AT AURANGABAD




                                                  
                         CRIMINAL APPEAL NO.482 OF 2015




                                                 
     Baburao s/o Marotrao Dakhore,
     Age-50 years, Occ:Labour,
     R/o-Navi Abadi Jamgavan,




                                         
     Tq-Kalamnuri, District-Hingoli.
                                     ...APPELLANT 
                              ig     (Ori. Accused)

            VERSUS             
                            
     1) The State of Maharashtra,   
        through, Police Station,
        Balapur Tq-Kalamnuri,
        District-Hingoli,
      


     2) Miss.- S. (See Appeal Memo for name)
   



        Age-16 years, Occ:Nil,
        R/o-Jamgavan, Tq-Kalamnuri,
        District-Hingoli,
        At present - Child Remand Home,





        At Hingoli.
                                     ...RESPONDENTS

                          ...
        Mr. S.S. Choudhari Advocate holding for   
        Mr. S.N. Rodge Advocate for  Appellant.





        Mrs. V.N. Patil-Jadhav, A.P.P. for Respondent 
        No.1.
        Mrs. Anjali Bajpai-Dube Advocate for Respondent 
        No.2.       
                          ...       

                                          WITH




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                         CRIMINAL APPEAL NO.181 OF 2016




                                                                         
     Miss.- S. (See Appeal Memo for name),
     Age-16 years, Occ:Labour,




                                                 
     R/o-Navi Abadi Jamgaon,
     Tq-Kalamnuri, District-Hingoli.
                                     ...APPELLANT 
                                   (Ori. Complainant)




                                                
            VERSUS             

     1) The State of Maharashtra,   
        through, Police Station,




                                      
        Balapur Tq-Kalamnuri,
        District-Hingoli,    
     2) Baburao S/o. Marotrao Dakhore,
        Age-53 years, Occ:Nil,
                            
        (At present in Jail)
                                     ...RESPONDENTS

                             ...
      

        Mrs. Anjali Bajpai-Dube Advocate for Appellant. 
        Mrs. V.N. Patil-Jadhav, A.P.P. for Respondent 
   



        No.1.
        Mr. S.S. Choudhari Advocate holding for   
        Mr. S.N. Rodge Advocate for Respondent No.2.
                             ...





        

                            CORAM:   A.I.S. CHEEMA, J.

        DATE OF RESERVING JUDGMENT  : 8TH AUGUST, 2016  





        DATE OF PRONOUNCING JUDGMENT: 25TH AUGUST, 2016
                                      

     JUDGMENT :

1. Criminal Appeal No.482 of 2015 has been

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filed by the Appellant - original accused who has

been convicted by the Additional Sessions Judge,

Hingoli in Special Child Case No.1 of 2013 on 29th

April 2015 under Section 4 of the Protection of

Children from Sexual Offences Act, 2012 ("the Act"

in brief) and has been sentenced to suffer

rigorous imprisonment for ten years and to pay

fine of Rs.35,000/- (Rupees Thirty Five Thousand)

and in default of payment of fine to suffer

further simple imprisonment for one year. The

trial Court directed that if fine is recovered,

Rs.25,000/- (Rupees Twenty Five Thousand) from the

same be paid to the Complainant as compensation.

The case of the prosecutrix (without naming, and

hereafter referred as "victim") has been referred

to the District Victim Compensation Board, Hingoli

with recommendation to give adequate compensation

to the victim.

2. Criminal Appeal No.181 of 2016 has been

filed by the victim seeking enhancement in the

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compensation to the tune of Rs.1,00,000/-

(Rupees One lakh).

3. The case of prosecution, in short, is as

follows:-

(A) On 25th September 2013 at about 5.00 p.m.

the victim filed F.I.R. (Exhibit 37) at Akhada

Balapur Police Station. She mentioned her age as

16 years and occupation to be labour, residing at

Nai Abadi, Jamgavan, Tq-Kalamnuri. The F.I.R.

mentioned that she was doing labour work to

support herself as well as her younger sister. She

does not have her parents or brother and she only

has a sister as named in the F.I.R. (examined as

PW-14). (I will refer to PW-14 Only as - sister of

victim). The parents died when the victim and her

sister were children and both the sisters were

then residing with their grand-mother at Jamgavan.

The grand-mother died two years back and

thereafter both the sisters have continued to

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reside in the house of the grand-mother. In the

same village, she has maternal uncle Khandu

(PW-2) and maternal aunt but they never visit the

victim. Her paternal uncle and aunt reside at

Khambala but they never visit the victim and her

sister. Gangubai Khude (PW-5) is neighbour and

beyond the house of Gangubai, the accused Baburao

Dakhore lives.

. The F.I.R. mentions regarding the

incident that about eight months before, accused

Baburao came to the house of victim and made

allegation expressing suspicion that the victim

had stolen his ring and he told both the sisters

that they should not reside there. So saying, the

accused drove out the two sisters outside their

house. Both the sisters went to maternal uncle

Khandoji at Jamgavan and told him as to

what has happened and he explained to the accused

and helped them to re-enter their house. After

this incident, after about eight days, in the

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night at about 9.30 p.m., sister of victim went to

the house of accused to watch T.V. At that time

victim was alone at home. The accused came to the

house of the victim which is a room made of tins

and moment he came, without letting her understand

anything, he took out handkerchief from his pocket

and pressed it against her mouth and tied the same

to her mouth. She tried to resist but accused did

not let her succeed. The F.I.R. then give details

as to how rape was committed on the victim and it

is stated that the accused then threatened her

that if she tells the incident to anybody, she and

her sister would be killed. When the rape was

committed, the accused had, with the help of

Odhani of the victim, tied both her hands behind.

After the rape and after giving threat, the

accused went away. After some time her sister came

back home and she opened the handkerchief which

was tied to the mouth of the victim and the Odhani

by which her hands had been tied. She told the

incident to her sister. Out of fear they did not

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tell the incident to anybody. The F.I.R. stated

that as they did not tell the incident to anybody,

the accused started coming to places where the

victim went for labour work and used to signal her

to come aside and took opportunities to further

forcibly rape her, every 8-10 days. In the last

eight months, the accused took opportunities to

rape her when nobody was at her home or in the

field. Her stomach started showing and she

consulted a mid-wife in the village and the lady

told her that she was pregnant by five months. She

gave this information to the Sarpanch and the

villagers brought the victim at the Police

Station. She has told the facts to lady Constable

Dalvi and Madhuri Dhule (PW-4) of Mahila Dakshata

Committee. Thus, the F.I.R.

(B) On receiving the F.I.R. to above effect

the offence was registered at the Police Station

and investigation was taken over by PW-16 A.S.I.

Sayed Irshad Ali. He went and arrested the

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accused. The statements of witnesses were

recorded. As the relatives and villagers were not

ready to accept the victim girl, she was sent to

Remand Home. It appears her sister was also sent

off to Remand Home. The spot Panchnama(Exhibit 25)

was recorded on 29th September 2013. The clothes

of the victim were seized on 29th September 2013

(Panchnama Exhibit 39). The clothes of the accused

were also seized (Panchnama Exhibit 40). Police

collected extract from the school admission

register (Exhibit 44). When the victim was

examined by the medical officer, it transpired

that she was carrying twenty weeks pregnancy.

There were no external injuries found.

4. On completing the investigation, charge-

sheet came to be filed.

5. Charge was framed by the Additional

Sessions Judge under Section 4 of the Act and

under Section 376 (2) (h) (i) of the Indian Penal

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Code, 1860 ("I.P.C." in brief). The accused

pleaded not guilty. His defence is of denial.

6. The prosecution examined in all sixteen

witnesses to bring home the guilt. The trial Court

after considering the oral and documentary

evidence brought on record by the prosecution,

decided to convict the accused only under

Section 4 of the Act and not under Section 376 of

I.P.C. as it was of the opinion that punishment

under Section 4 of the Act is of greater degree.

Thus, the conviction and sentence as mentioned

above.

7. I have heard learned counsel for the

Appellant-accused. He has taken me through the

whole evidence of witnesses. According to him, the

trial Court did not appreciate the evidence

properly and came to wrong and erroneous

conclusions. The offence of rape had not been

established. The sister of the victim should have

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been treated as a tutored witness. It should have

been seen that there was delay of more than eight

months in reporting the matter to the Police. The

accused has been implicated in the offence at the

instance of politically rival group. According to

learned counsel the offence should have been held

as not proved and the accused deserves to be

acquitted. According to him, regarding the age of

the victim there is no other evidence other than

her own evidence and the evidence of PW-11

Sulochana Mukhade, Head Mistress of the school.

The ossification test was not done. Due to earlier

incident of theft of ring the accused wanted the

victim to leave the area and because of this

victim filed false case. The basis on which school

entry was made regarding date of birth of victim

was not brought before the Court. D.N.A. test was

not done. There was no witness of alleged multiple

sexual assault. There was no evidence of

resistance, shouting etc.

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. With regard to the Criminal Appeal No.181

of 2016 the counsel for accused submitted that the

accused has not been able to pay even the fine of

Rs.35,000/- which was imposed and he would not be

in a position to pay any enhanced compensation.

8. Advocate Mrs. Bajpai in Criminal Appeal

No.181 of 2016 submitted that if the facts of the

present case are perused, the accused really

deserved to be convicted under Section 6 and not

under Section 4 of the Act. The victim had been

kept in the Remand Home after the incident came to

light and now as she has become major, she has

been asked to leave the Remand Home and she is

facing hardships of the life as she has no support

and the amount of compensation deserves to be

increased. Relying on Section 29 of the Act it is

stated that there is presumption that the accused

committed the offence and thus according to the

counsel, no interference in the Judgment is called

for.

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9. Against the Appeal of the accused, the

learned A.P.P. submitted that the prosecution

brought on record all the necessary evidence to

prove the offence. It is stated that the reasons

recorded by the trial Court to convict the accused

are correct and proper and should be upheld. The

A.P.P. submitted that in the matter of Jarnail

Singh vs. State of Haryana reported in (2013) 7

Supreme Court Cases 263, the Hon'ble the Supreme

Court discussed Rule 12 of the Juvenile Justice

(Care and Protection of Children) Rules 2007

("Rules of 2007" in brief). Rule 12 (3) gives

list of documents and the provision is that the

age of the child can be ascertained by adopting

first available basis out of number of options

postulated in Rule 12 (3) of the Rules of 2007.

According to the learned A.P.P. in the present

matter victim deposed that her date of birth is

10th June 1997 and she is supported by the school

record. When the evidence from school was

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available, then if ossification test was not done,

it would not make any difference looking to the

higher value given to school record in Rule 12 of

the Rules of 2007 which the Hon'ble Supreme Court

applied even in the case of determining the age of

the prosecutrix. Thus according to the A.P.P., the

Appeal of the accused deserves to be dismissed.

10.

In the present matter, the prosecution

examined the two maternal uncles of the

victim as PW-2 Khandoji and PW-3 Topaji. Two

neighbours of the victim i.e. PW-5 Gangubai Khude

and PW-6 Devidas Tambhare were also examined. All

these four persons turned hostile and were cross-

examined by the prosecutor and have been

discredited. PW-7 Uttam Jadhav is husband of the

Sarpanch of the village. The victim appears to be

referring to PW-7 Uttam as if he himself was the

Sarpanch. The evidence shows that when the

incident came to light, this PW-7 Uttam collected

the villagers and the victim was taken to the

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police station. At the police station, PW-16

P.S.I. Sayed Irshad Ali called lady police

constable Dalvi and PW-4 Madhuri Dhule of Mahila

Dakshata Committee and the F.I.R. shows that these

ladies made the victim comfortable so as to

register the offence and F.I.R. came to be filed.

11. Going through the material available,

some of the facts are almost unchallenged and can

be treated to be admitted. These facts are as

follows:-

. There is no dispute regarding the fact

that the victim was doing labour work and taking

care of herself and her younger sister. Parents of

these sisters died when they were still younger

children. Both the sisters were earlier residing

with their grand-mother in the house at New Abadi,

Jamgavan. This Abadi is at short distance from

the main village Jamgavan. The grand-mother

Janabai died about two years before the incident

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came to light and after the death of the grand-

mother, both the sisters alone continued to stay

in the house left by the grand-mother. The

maternal uncle PW-2 Khandoji and PW-3 Topaji

reside in the same village Jamgavan but the

evidence is that they have not been taking care of

these two girls i.e. PW-8 victim and her sister

PW-14. The evidence brought on record shows that

when the incident came to light, neither the

relatives nor the villagers wanted to help the

victim and her sister and consequently the police

sent them off to the Remand Home.

12. Keeping such unsympathetic relatives and

villagers in view, it would be appropriate now to

refer to the evidence of the victim PW-8 herself.

The victim has deposed and in evidence mentioned

that her date of birth is 10th June 1997. She

deposed that her parents died in her childhood and

she was living with her grand-mother and her

sister who was 13 years old. Her uncles PW-2

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Khandoji and PW-3 Topaji along with aunts reside

at Khambala. She does not visit them. Grand-mother

died two years ago and since then she and her

sister were residing in the house. She and her

sister were doing labour work and maintaining

themselves. The uncles and aunts refused to

maintain them. PW-5 Gangubai is their neighbour

and so is the accused. The house of accused is

after one house. The victim further deposed that

the accused had once come to her house and made

allegations that she has stolen his gold ring and

he suggested that the victim and her sister should

not reside in that house and in the village.

Victim deposed that she then went to her maternal

uncle Khandoji and told him about the incident and

came along with her uncle who assured that he

would convince the accused. Victim deposed that

her uncle convinced the accused and thereafter she

and her sister continued to reside in their house.

Her evidence is that eight days thereafter at

about 9.00 p.m. her sister had gone to the house

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of the accused. The F.I.R. shows that sister had

gone to watch T.V. Evidence of victim is that at

such time accused entered her house when she was

alone and he took out handkerchief and pressed the

same on her mouth and gagged her mouth with the

help of handkerchief. He took out Odhani from her

person and tied both her hands. The evidence then

gives details as to how the accused forcibly

removed her clothes and forcibly committed

intercourse on her. Her evidence is that she

attempted to shout but the accused over-powered

her. He then threatened to kill her and her sister

if the incident was disclosed to anybody. Then he

went away. Victim PW-8 deposed that after some

time her sister came home and freed her mouth and

her hands. She told the incident to her sister but

the incident was not told to any other person out

of fear of accused. This evidence clearly proves

rape and age is immaterial.

13. The above evidence of the victim

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regarding the first encounter with the accused

regarding rape, is corroborated by the evidence of

PW-14, the sister of victim. This sister of the

victim deposed that on the day concerned, she had

gone to the house of accused to watch T.V. and she

came back at about 10.00 p.m. and found that the

mouth of her sister was gagged and that her hands

had been tied. She untied the mouth and hands and

inquired as to who tied her. She deposed that the

victim told her that the accused had come to their

house. The evidence of PW-14, the sister shows

that the victim did told her at that time that the

accused had committed forcible intercourse on her.

Noting in the recording of evidence shows that the

sister of victim PW-14, at the time of her

evidence, appeared to be frightened and the

evidence was adjourned for 2-3 days. In her

further evidence, PW-14 deposed that when she went

back home, she found that there were no clothes on

the person of her sister and the victim did tell

her that the accused had threatened to kill them

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if the incident is disclosed. Her evidence is that

because of this, they did not inform anybody.

PW-14 has corroborated the victim even regarding

the earlier incident of allegation of stealing of

gold ring and the accused trying to force them to

leave the house and the uncle intervening.

14. The evidence of victim then shows that

after the first incident, when she started going

for labour work in the fields of others, the

accused would follow her and used to give signals

to her to come aside and that he used to forcibly

commit intercourse with her with intervals of

about eight days. Evidence is that this continued

for about eight months and such incidents occurred

from time to time either in the field or at her

house. Victim deposed that consequently she became

pregnant and her evidence shows that she did

consult a mid-wife who told that victim was

carrying pregnancy of five months. Her evidence

further is that Sarpanch came to know about the

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incident and came to her house and collected some

persons from the village and made inquiries from

her in presence of those persons. Thereafter the

victim says that she disclosed about the acts of

the accused. Consequently, she was taken to the

police station and she gave the details to the

police. She has proved the F.I.R. Exhibit 37.

15.

The evidence of PW-7 Uttam Jadhav shows

that actually his wife Parwatibai is the Sarpanch.

The village Jamgavan is about 1 k.m. from New

Abadi. According to him, on 25th September 2013 he

came to know about pregnancy of the victim and he

collected 10 - 12 people and went to the house of

the victim. The two sisters were sleeping. They

were woken up and brought to the square of the

village and inquires were made from the victim.

His evidence shows as to how at that time victim

disclosed about the acts of the accused in

forcibly committing intercourse on her. He deposed

that the victim along with her sister and the

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villagers was taken to the police station and

complaint of the victim came to be recorded. His

evidence shows that police had gone to the house

of the accused and brought him also to the police

station.

16. The evidence of PW-4 Madhuri Dhule of

Mahila Dakshata Committee and PW-16 P.S.I. Sayed

Irshad Ali shows that on 25th September 2013 the

villagers had brought along the victim to the

police station and as the victim made the

allegations of rape, the P.S.I. called PW-4 and a

lady constable and these ladies talked to the

victim. The F.I.R. was then recorded and the same

came to be registered. The evidence of PW-16

Sayed Irshad Ali shows that the victim was then

sent to PW-13 Dr. Manjusha Adhav at the Government

Hospital, Nanded and the victim was examined. The

evidence of PW-13 Manjusha shows that on

examination the victim was found to have uterus

size of 20 weeks, external ballotment present,

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relaxed. No external injuries were found. The

observations are noted in O.P.D. Papers

Exhibit 51. On the police asking for opinion, this

witness gave provisional medical certificate

Exhibit 53. The witness deposed that X-ray could

not be advised in the situation because the victim

was pregnant. Looking to this if ossification test

was not done, fault cannot be found with

prosecution.

17. The prosecution examined PW-11 Sulochana

Mukhade, Head-Mistress of Shri Shivajirao Moghe

Primary Residential School at Kandli Phata, Akhada

Balapur. This Head-Mistress deposed that on

request of police, she had issued extract of

school admission register of the victim, which the

witness has proved at Exhibit 44. The witness

deposed that as per entry recorded in the school

record, date of birth of victim is 10th June 1997

and that the contents were true as per the school

admission register and that it bears her

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signature. The witness admitted that the entry in

the school record had been made on the basis of

transfer certificate received from the earlier

residential school, Shirali. Thus, as per this

evidence, the date of birth recorded in the school

records maintained in ordinary course showed that

the victim was born on 10th June 1997.

18.

The prosecution seized clothes of the

victim as well as of the accused vide Exhibits 39

and 40 and examined PW-9 Arvind Tarfe as well as

PW-10 Devidas Kurude in this regard and

Investigating Officer PW-16 has deposed about the

same and C.A. Reports are also proved. However,

the C.A. Reports have not brought on record any

incriminating material against the accused on this

count. This is natural looking to the fact that

there was a gap between the various incidents of

forceful intercourse and incident coming to light.

19. PW-2 Khandoji, the maternal uncle

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of the victim did not support the prosecution and

was declared hostile and his earlier statement to

police was proved at Exhibit 63. PW-3 Topaji, the

other uncle of the victim also turned hostile and

he was confronted with his statement to police at

Exhibit 66. PW-3 Topaji went further to give all

admissions sought by the accused in the cross-

examination to the extent of even saying that the

character of the victim was not good. Without any

semblance of regret, he admitted that it was true

that he was not maintaining the victim and her

sister.

20. No doubt PW-8 victim in her cross-

examination deposed that she had to leave the

Ashram school as there was nobody to look after

her grand-mother and nobody was providing food to

her grand-mother, and her uncles and aunts were

not looking after her and her sister and they had

totally neglected them. She deposed that she had

not told about the incident to her aunts and

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uncles and added that even if she would have told

the same to them, it would have been in vain. The

evidence of PW-2 and PW-3 read with evidence of

other hostile neighbour PW-5 Gangubai shows that

while Gangubai had good relations with the

accused, she admitted that the relatives of the

accused and the victim had compromised the case.

It is apparent that the victim did not compromise

but these witnesses who are relatives and

neighbours of the victim, appear to have decided

between them that the matter should be treated as

compromised. This PW-5 Gangubai also turned

hostile to her statement to police which came to

be proved at Exhibit 68. Same is the condition of

evidence of PW-6 Devidas. He was also confronted

with his police statement. PW-2, PW-3, PW-5 and

PW-6 thus deserved to be ignored as it is apparent

that they do not have any regard for truth, leave

aside having sympathy for two young girls like

PW-8 and PW-14 struggling to survive on their own

in such hostile set up.

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21. I have gone through the cross-examination

of PW-8, the victim. Regarding the incident, she

stated that she had sustained injuries to her

hands but accepted that she had not sustained

injuries because of forcible intercourse to her

private part. She deposed that at that time after

the first incident, she did not intend to tell

about the same due to the threats which had been

given by the accused. Her evidence is that she did

not attend the labour work for a day and

thereafter she had started going for labour work.

The cross-examination then shows suggestions from

the accused denying the incident which the victim

did not agree. Reading the evidence as a whole of

PW-8 the victim, it cannot be said that she was

shattered in her evidence in any manner. So is the

condition of cross-examination of PW-14, the

sister of the victim. There is no material to hold

that she was tutored as claimed by counsel for

Accused.

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22. There is no substance in the argument

that there was delay of eight months in filing of

the F.I.R. The evidence shows that the victim

along with her still younger sister was herself a

minor at the time of incident and did not have any

support from any side and appears to have become

the victim of the circumstances. She did not have

the courage to go and seek help. The evidence

rather shows that the villagers forcibly took her

and her sister to the police station once the

victim talked to a local mid-wife regarding her

difficulty as she became pregnant. Possibly victim

may have anticipated hostile villagers and thus

kept quiet till it became unavoidable. The victim

became pregnant is not in dispute. In the

circumstances as appearing from the evidence in

this matter, there is no reason to disbelieve the

victim PW-8.

23. The accused has tried to vaguely claim

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that there was rival political group because of

which the case has been filed. In the cross-

examination of PW-7 Uttam Jadhav he accepted that

there was a group Gram Panchayat for village

Jamgavan, Jamgavan Tanda and Jamgavan New Abadi.

He accepted that there are separate panels in

election of Gram Panchayat. He accepted that his

wife had contested election in a ward from Nai

Abadi and one Sawarnmala Baban Khude has contested

election from opposite panel. He accepted that one

Baban Khude is brother of son-in-law of accused.

On the basis of drawing such remote relations, the

accused is trying to show that he is being made

the victim. In the democratic set up as is

existing, elections are bound to be there and

there are bound to be opposite panels and the

candidates are bound to have relatives or friends.

This does not mean that helpless girls like the

victim and her sister would come forward to depose

against the accused only because he happens to be

some distant relative of opposite candidate of the

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wife of PW-7 Uttam Jadhav. In fact the evidence

rather shows that this PW-7 Uttam Jadhav had

forced and taken the victim along with her sister

to the police station and put them before the

police after having questioned them in the square

of the village. The sisters rather landed up in

Remand Home due to PW-7 Uttam's initiative. There

is no substance in the defence taken by the

accused that he was being made a victim due to

politics in the village.

24. The A.P.P. has relied on the case of

Jarnail Singh vs. State of Haryana, cited supra.

In Para 28 of the Judgment, the Hon'ble Supreme

Court reproduced Rule 12 of Juvenile Justice (Care

and Protection of Children) Rules, 2007 and

further observed as under:-

"Even though Rule 12 is strictly applicable only to determine the age of a child in conflict with law, we are of the view that the aforesaid statutory provision should be the

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basis for determining age, even for a child

who is a victim of crime. For, in our view, there is hardly any difference in so far as

the issue of minority is concerned, between a child in conflict with law, and a child who is a victim of crime. Therefore, in our

considered opinion, it would be just and appropriate to apply Rule 12 of the 2007 Rules, to determine the age of the prosecutrix

VW-PW6. The manner of determining age conclusively, has been expressed in sub-rule

(3) of Rule 12 extracted above. Under the aforesaid provision, the age of a child is

ascertained, by adopting the first available basis, out of a number of options postulated in Rule 12(3). If, in the scheme of options

under Rule 12(3), an option is expressed in a preceding clause, it has overriding effect

over an option expressed in a subsequent clause. The highest rated option available, would conclusively determine the age of a

minor. In the scheme of Rule 12(3), matriculation (or equivalent) certificate of the concerned child, is the highest rated option. In case, the said certificate is

available, no other evidence can be relied upon. Only in the absence of the said certificate, Rule 12(3), envisages consideration of the date of birth entered, in the school first attended by the child. In

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case such an entry of date of birth is

available, the date of birth depicted therein is liable to be treated as final and

conclusive, and no other material is to be relied upon. Only in the absence of such entry, Rule 12(3) postulates reliance on a

birth certificate issued by a corporation or a municipal authority or a panchayat. Yet again, if such a certificate is available, then no

other material whatsoever is to be taken into consideration, for determining the age of the

child concerned, as the said certificate would conclusively determine the age of the child.

It is only in the absence of any of the aforesaid, that Rule 12(3) postulates the determination of age of the concerned child,

on the basis of medical opinion."

25. In the present matter, the victim did not

reach the level of matriculation. The date of

birth from school record is no doubt not from the

first school attended but it appears to be from

entry in the school record maintained in ordinary

course and going through the evidence of PW-11

Sulochana Mukhade, I do not find any reason to

doubt the entries made in the school record. It

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cannot be said that the entries have been

manipulated or changed or corrected or that they

had been made in anticipation. Thus there is no

reason to not accept the oral evidence of the

victim supported by the school record that her

date of birth was 10th June 1997. Accepting this,

it is clear that at the time when complaint was

filed on 25th September 2013 the victim was about

16 years and three months old and the first

incident of rape occurred eight months before the

date of filing of complaint. Clearly the victim

was less than 16 years of age at that time.

Criminal Law Amendment Act 2013 amending the

I.P.C. was implemented with effect from 3rd

February 2013 when the age became 18 years with

regard to the question of consensual sex. In the

present matter firstly there is no evidence that

it was a case of consensual sex. Rather, the

evidence shows that the accused managed to commit

forcible intercourse on the victim on first

occasion and when victim did not gather courage to

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make the incident public, he continued to take

disadvantage so as to keep on violating her from

time to time. The very nature of such acts is that

the accused would take care to quietly reach the

victim for the purpose. Circumstances in which

victim was caught cannot be construed as consent.

Thus looking at the incident from point of view of

Section 375 of I.P.C. or the provisions of the

Protection of Children from Sexual Offences Act

2012, in any case the accused must be held to have

committed the offence as charged.

26. The accused was charged also with

Section 4 of the Act. Section 29 of the Act raises

presumption that where the person is prosecuted

for committing offence under Sections 3, 5, 7 and

9 of the Act, the Special Court shall presume that

such person has committed the offence unless the

contrary is proved. In the present matter, the

trial Court framed charge referring to Section 4

of the Act instead of Section 6 of the Act

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although the charge mentions that the accused had

eight months before 25th September 2013 till the

said date from time to time committed penetrative

sexual assault/rape on the victim. Thus

particulars explained were of Section 5 (l) read

with Section 6 of the Act, while erroneously

Section 4 was referred. Although Section 4 of the

Act has been mentioned and even conviction imposed

is under Section 4 of the Act, learned counsel for

the victim in Criminal Appeal No.181 of 2016 has

rightly submitted that actually offence proved in

this matter was aggravated penetrative sexual

assault. Although I am finding this from the

present record, I am not proceeding to disturb the

conviction order as has been passed which would be

under lesser Section which is Section 4 of the

Act. This is because there is no Appeal for

punishment under higher Section.

27. I have gone through the Judgment of the

trial Court as regards of the merits of the matter

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and found that the trial Court correctly discussed

the evidence and came to the right conclusion

regarding the incident. The trial Court concluded

from the evidence that the victim was 16 years and

about three months old at the time of filing of

the complaint; that there was no substance in the

defence of the accused; that the evidence of the

victim and her sister was consistent and

corroborative to each other; that the accused had

failed to impeach the evidence of these sisters;

that the New Abadi was about a Kilometer away from

the main village and was having less population

(thus giving opportunity to the accused to reach

out to the victim for repeated acts of violation);

that the accused was in a position to take

precaution to conceal his activities; that the

evidence of PW-7 Uttam was natural where he

deposed that he collected people and took the

victim to the police station; and that the offence

against the accused had been established.

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28. Going through the material, there is no

substance in the Appeal of the accused. As there

is no Appeal from the State that the conviction

should have been under Section 6 of the Act, I am

not disturbing the order of the trial Court on

that count.

29. As regards Criminal Appeal No.181 of 2016

filed by the victim to enhance the amount of fine,

the trial Court has discussed the aspects and

considered the income of the accused and his

living standard and social status and observed

that the accused would not be able to pay huge

amount of fine and therefore the trial Court

settled the amount at Rs.35,000/-. I do not find

any reason to disturb this. Even the amount of

Rs.35,000/- as imposed against the Appellant -

accused has not been deposited by him as yet.

30. Criminal Appeal No.181 of 2016 however

may have to be partly allowed. In the eventuality

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of the fine being recovered, the amount of

Rs.35,000/- (Rupees Thirty Five Thousand) should

be paid to the victim as compensation instead of

Rs.25,000/- as ordered by the trial Court. The

District Legal Services Authority, Hingoli can

however be directed to pursue the matter regarding

giving adequate compensation to the victim.

31.

For the above reasons, I pass the

following order:-

O R D E R

(I) Criminal Appeal No.482 of 2015

seeking setting aside of the conviction

and sentence imposed vide impugned

Judgment and Order, is rejected.

However, as regards direction No.5 in

the impugned Judgment and order of the

trial Court, the amount of Rs.35,000/-

shall be substituted in place of

Rs.25,000/- as mentioned by the trial

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Court. Thus if fine is recovered, the

whole of the fine shall be paid to the

victim as compensation.

(II) As regards Criminal Appeal No.181

of 2016, the same is partly allowed in

view of the above directions whereby the

fine of Rs.35,000/- (Rupees Thirty Five

Thousand) if recovered, would fully go

to the victim. In addition, looking to

facts of the matter specially that

victim is helpless orphan with no

support, I hereby direct/request the

District Legal Services Authority of

Hingoli District under Section 357-A of

the Code of Criminal Procedure, 1973, to

take up the matter of compensation as

well as rehabilitation of the victim,

keeping in view the direction No.6 in

the impugned Judgment and order of the

trial Court.

                                                                        cria482.15





                                                                            
              (III)            If   the   fine   is   recovered,   at 




                                                    
              the   time   of   payment   of   fine   as 

compensation, the same shall be paid by

depositing the amount in fixed deposit

in Nationalized Bank in the name of

victim for six months, which at the end

of the period shall be transferred by

the Bank to her Savings Account.

Registry of the District Court shall

assist victim to open Savings Account in

Bank if help is necessary.

(IV) Both the Appeals, i.e. Criminal

Appeal No.482 of 2015 and Criminal

Appeal No.181 of 2016 are disposed of,

accordingly.

[A.I.S. CHEEMA, J.]

asb/AUG16